General Conditions of Purchase of Solunaris GmbH
1. General, definitions
1.1 The customer is Solunaris GmbH, Industriepark Kalle-Albert, Building E232, Kasteler Strasse 45, D-65203 Wiesbaden.
1.2 The supplier is the natural and legal person, with whom Solunaris has placed the order, including its vicarious agents. These purchase conditions apply solely to entrepreneurs, legal persons under public law or special funds under public law according to Sec. 310 Para. 1 BGB (German Civil Code). Solunaris does not accept deliveries from consumers according to Sec. 13 BGB (German Civil Code).
1.3 The order items are deliveries and/or services which shall be provided by Solunaris on the basis of the order.
1.4 These purchase conditions shall exclusively apply to all contracts between the supplier and Solunaris unless agreed otherwise in writing. These purchase conditions shall also apply to all future contracts, even if not agreed upon expressly. Contrasting or diverging conditions of the supplier from these purchase conditions shall not be recognized, even where there is a placement of an order or unconditional acceptance of the order item.
1.5 There are no verbal agreements.
2. Materialization of the order
2.1 Orders shall only be binding if they are placed in writing or confirmed by Solunaris. The same applies to other declarations. The supplier shall refer to obvious errors (e.g. spelling or arithmetical errors) and incompleteness of the order for the purposes of correction or making them more complete; otherwise the contract shall not be considered concluded.
2.2 The supplier shall confirm acceptance of the order in writing within 2 weeks after receipt. The supplier shall issue the following written and signed declaration intended to represent the supplier at the request of Solunaris:
„I/We hereby declare that the goods that were produced, stored, transported for authorised economic operators (AEO) were delivered to or taken delivery of by them, were produced, stored, treated or processed and loaded at secure premises, while the production, storage, treatment or processing, loading and transportation were protected from unauthorised access, that the personnel used for the production, storage, treatment or processing, loading, transportation and taking delivery of such goods are reliable business partners acting on my/our behalf and have been notified of this and must likewise take measures to protect the aforementioned supply chain.“
Otherwise there is no longer any commitment of Solunaris to its order.
2.3 Solunaris reserves the right to its proprietary right and copyright in illustrations, drawings and computations. Access must not be allowed to third parties without the express written agreement of Solunaris. These materials should expressly be used for production on the basis of the order; after the order has been processed they shall be returned immediately. They shall be kept confidential from third parties even after the contract has been terminated. The obligation to secrecy shall only lapse if and provided that the information contained in the delivered documents became generally known.
3. Execution of the order
3.1 The order item described in the order shall be executed in such completeness that it is fully able to function and its operational secure use is guaranteed. The order item shall correspond to the statutory safety and environmental provisions and – if necessary – be characterized corresponding to these provisions. Should the supplier determine after accepting the order that it is defective or inconsistent, it is obliged to inform Solunaris immediately.
3.2 When ordering services, the supplier shall deliver the order item with the necessary technical documents for assembly, commissioning, operation and maintenance and adapt this documentation to any changes arising from processing the order.
3.3 The order shall be executed according to the state of the art at the time of the order.
3.4 Solunaris may, with the consent of the supplier, correct, supplement or otherwise change the mode of execution of the order item at any time.
3.5 The supplier shall notify Solunaris within two weeks of higher or lower prices or rescheduling due to alterations of the order.
3.6 All corrections, additions and changes shall be in writing and grow effective only by written confirmation of Solunaris.
4. Documentation
4.1 A stamp of alteration or approval by Solunaris in the supplier’s technical documentation shall not release the latter from its responsibility for the accuracy of all information contained therein.
4.2 Drawings, specifications and other documents provided by Solunaris shall be checked by the supplier before use for the order if possible. Solunaris shall be informed about errors and defects detected immediately. After completion of the order, the supplier shall immediately return all documents provided by Solunaris, unless it has to preserve them itself for statutory reasons (e.g. pre-examined shop drawings etc.).
5. Dates and deadlines
5.1 The delivery period stated in the order is binding. Delivery deadlines shall start from the order date. Early deliveries are only allowed in case of consent by Solunaris.
5.2 The supplier is obliged to immediately notify Solunaris in writing if circumstances arise or become known to it as a result of which the stipulated delivery time cannot be maintained. This applies especially, if the stipulated delivery time cannot be maintained due to the observance of requirements under public law in connection with EC-Regulation No. 1907/2006/EC (REACH).
5.3 In case of a delivery delay, after a prior written warning to the supplier, Solunaris may demand flat rate damages for the delay of 0.5 % of the order value per week but no more than 5 %. Additional statutory claims may be made also. The supplier is entitled to prove to Solunaris that the delay caused no or only slight damage. The lump sum shall then be reduced correspondingly. The contractual penalty shall be deducted from the damages for delay paid by the supplier.
6. Dispatch
6.1 Dispatch of the ordered deliveries and services is determined according to the specific instructions of Solunaris.
6.2 Partial shipments require the express written approval of Solunaris and shall be characterized as such in the dispatch documents clearly.
6.3 All dispatch documents shall be provided with the details, particularly order number, order position as well as number of units and weight per position prescribed by Solunaris.
6.4 Costs incurred by failure to observe these instructions shall be charged to the supplier.
6.5 In the absence of diverging written agreements, the price of delivery and transport shall be included in the dispatch address stated in the order, including packaging. If according to a diverging agreement the packaging is not included in the price, and payment for packaging – which is not lent only – agreed upon expressly, it shall be billed at the cost price provable. At the demand of Solunaris, the supplier shall take back the packaging material at its own cost.
7. Acceptance of services
7.1 Unless otherwise agreed upon expressly, acceptance of the order item shall take place at the place of use after delivery of the order, but at the latest on expiry of the final deadline agreed in the order.
7.2 This acceptance shall be recorded in a protocol signed jointly by Solunaris and the supplier.
7.3 The acceptance of the order item shall not constitute a waiver of its rights by Solunaris.
8. Passing of risk and transfer of ownership
8.1 Risk of accidental destruction and accidental deterioration of goods shall be transferred to Solunaris at the place of performance. Assembly shall also be included in the scope of delivery. Hence there shall be a passing of risk when assembly is concluded. Transport insurance shall be borne by the supplier.
8.2 Unless statutorily agreed otherwise, ownership of the order item at the time of the passing of risk shall belong Solunaris. This shall not produce any acceptance of the order item.
9. Material defects and defects in title
9.1 The rights of Solunaris in case of material defects and defects in title of the good (including wrong and short shipment, incorrect installation, defective installation, operation or operating instructions) and other breaches of obligation by the supplier shall be governed by the applying statutory regulations unless otherwise determined below.
9.2 According to the statutory provisions, the supplier shall be liable for the ordered items being free of material defect on passing of the risk to Solunaris. The ordered items shall in particular be of the agreed quality. The product description shall in any case be considered an agreement of the quality which – particularly by description or reference in our order – shall be a subject of the relevant contract or included in the contract in the same way as these purchase conditions. It shall make no difference whether the product description originates from Solunaris, the supplier or the manufacturer. Corresponding identified applications of the order item according to the EC-Regulation concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) constitute an agreement of the quality and a suitable use intended under the contract. Characteristics of samples and patterns are binding as a suitable use intended under the contract.
9.3 Derogating from Sec. 442 Para. 1 C. 2 Civil Code, Solunaris is entitled unrestrictedly to warranty claims even if a defect remained unnoticed by Solunaris on conclusion of the contract as a result of gross negligence.
9.4 For the commercial duties of inspection and obligations to make a claim, the statutory regulations apply (Sec. 377, 381 Commercial Code), with the following proviso: Solunaris shall examine the ordered items for material defects within an appropriate period after receipt at the place of destination. The inspection duty of Solunaris is restricted to defects which are obviously perceptible by external appraisal, including delivery notes and with our quality controls at random sample (e.g. transportation damage, wrong and short shipment). If an acceptance is agreed, there is no inspection duty. Moreover, it depends to what extent inspection is appropriate, taking into consideration the circumstances of the individual case and the course of business. The obligation of Solunaris to claim defects discovered later is unaffected. In all cases Solunaris complaint (notice of defect) shall be considered as immediate and prompt if received within five working days from discovery of the defect by the supplier.
9.5 Costs incurred to check and remedy defects of the supplier (including any expansion and installation costs) shall be borne by the latter even if it turns out that there is no defect. Solunaris’ liability to compensation for unjustified demands of removing defects is unaffected. To this extent Solunaris is only liable if it recognizes or is grossly negligent in not recognizing that there is no defect.
9.6 If the supplier fails to fulfil its duty of subsequent performance – at the choice of Solunaris by repairing the defect (improvement) or by delivering a product free of defect (substitute consignment) – within an appropriate deadline set by Solunaris, Solunaris may cure the defect itself and demand compensation for the costs incurred hereby or a corresponding advance payment from the supplier. If the supplier fails to provide subsequent performance, the supplier rejects this demand or if it is unreasonable for Solunaris (e.g. because of special urgency, endangerment of operational safety or impending occurrence of disproportionate damage), a deadline is superfluous; Solunaris shall immediately notify the supplier of such circumstances, if possible beforehand.
9.7 Moreover, in the event of a material defect or defect of title under the statutory regulations Solunaris is entitled to withdraw from the contract. Solunaris may also claim compensation and a refund under the statutory regulations.
10. Supplier’s regress
10.1 In addition to claims concerning material defects and defects in title of the good, Solunaris is entitled to unlimited statutory claims for compensation within a supply chain (supplier’s regress in accordance with Sec. 478, 479 Civil Code). Solunaris is particularly entitled to the exact type of subsequent performance (improvement or substitute consignment) from the supplier which it is obliged to its clients in the individual case. Solunaris’ statutory right of choice (Sec. 439 Para. 1 Civil Code) remains unaffected hereby.
10.2 Prior to acknowledging or settling a warranty claim by its client (including a refund of expenses under Sec. 478 Para. 3, 439 Para. 2 Civil Code), Solunaris shall notify the supplier with a brief setting forth of the facts and request a written opinion. If the opinion is not given within two weeks time and no joint solution is produced either, the supplier shall be liable for the warranty claim actually granted by Solunaris to its client. In this case, counter-evidence shall be incumbent on the supplier.
10.3 The claims of Solunaris under the supplier’s regress shall also apply if the good was additionally processed by Solunaris, its client or any other third party, e.g. by inclusion in another product.
11. Product liability – exemption – third party liability insurance
11.1 If the supplier is responsible for product damage, it is obliged to exempt Solunaris upon first request to the extent, as the product damage originates from the organizational domain of the supplier and as the supplier is liable itself externally.
11.2 In this conjunction the supplier is also obliged to reimburse any expenses arising from or in connection with any recall campaign conducted by Solunaris in accordance with Sec. 683, 670 Civil Code. Solunaris will inform the supplier, to the extent possible and reasonable, about the content and scope of the recall measures to be undertaken and to give the supplier the opportunity to comment thereon.
11.3 The supplier has to maintain product liability insurance with an insured sum of at least 500,000.00 Euro per case of personal injury / property damage. The suppliers contractual and legal liability remains unaffected by the extent and amount of its insurance coverage.
12. Statute of limitations
12.1 Mutual claims of the contracting parties shall be statute-barred according to the statutory regulations, unless otherwise determined below.
12.2 Deviating to Sec. 438 Para. 1 No. 3 Civil Code, the general statute of limitations period for warranty claims is 3 years from the passing of risks. If acceptance is agreed, the statute of limitations shall begin with acceptance. The 3 year statute of limitations period shall apply correspondingly for defect in title claims, whereby the statutory statute of limitations period for real rights for restitution of third parties (Sec. 438 Para. 1 No. 1 Civil Code) remains unaffected. Claims for defects in title shall also not be statute-barred if the third party can claim the right – particularly in the absence of the statute of limitations – against Solunaris.
12.3 The statute of limitations period of the sale of goods including the aforementioned extension shall apply – within the law – to all contractual warranty claims. In case Solunaris is entitled to extra-contractual compensatory claims because of a defect, the regular statutory statute of limitations shall apply (Sec. 195, 199 Civil Code), unless the application of the statute of limitations period of the sale of goods does not imply a longer statute of limitations period in the particular case.
13. Proprietary rights
13.1 The supplier shall be held responsible in accordance with Para. 2, that the ordered items do not infringe any proprietary rights of third parties within Germany, the European Union or any other jurisdictions, in which the products are manufactured.
13.2 The supplier shall exempt Solunaris from all claims of third parties due to violations of proprietary rights mentioned in Para. 1 and refund all necessary costs arising from such claims to Solunaris. This entitlement shall exist regardless to the fault of the supplier.
13.3 Further statutory claims of Solunaris due to defects of title remain unaffected.
13.4 The aforementioned provisions shall not apply in case the supplier manufactured the ordered items according to documents, patterns, models or similar specifications supplied by Solunaris and did not know or did not need to know about the infringement of rights thereby.
14. Confidentiality
14.1 The supplier is obliged to keep confidential and solely use all details of the order, all information and documents provided for the purpose of the order (except information accessible to the public). After placing a tender or a bid or completion of the order, the supplier will return all information and documents to Solunaris upon request.
14.2 Without prior written consent, the supplier must not disclose its business relationship with Solunaris in advertising material, brochures etc. The same applies to the exhibition or public display of order items.
14.3 The supplier shall oblige its subcontractors according to clause 14.
15. Invoicing
15.1 The price stated in the order shall be binding. All prices include the general sales tax, unless stated otherwise.
15.2 The price includes all services of the supplier (including ancillary services e.g. assembly, installation) as well as all additional costs (e.g. correct packaging, transport costs including any transport and third party insurance).
15.3 Precondition for any payment is the occurrence of all requirements of payment and timely completion by the supplier.
15.4 The agreed price shall be due for payment within 30 calendar days from full delivery and completion of the order (including any agreed acceptance) and receipt of an orderly invoice. At its discretion, Solunaris may pay with 2% discount within 10 days or at full price within 30 days. Bank transfers are prompt, if the transfer order is placed with the bank prior to expiry of the payment deadline. Solunaris is not responsible for delays in the banking process.
15.5 Solunaris does not owe interest from the date of the maturity of the suppliers claims. Solunaris owes a default rate of interest per year of five percentage points above the basic rate of interest. Solunaris will get in default according to statutory law, except the requirement of a prior warning notice.
15.6 Solunaris is entitled to a set-off right, the right of retention and a plea of non-performance according to statutory provisions. Solunaris shall particularly be entitled to retain due payments as long as it is entitled to claims from incomplete or defective performance against the supplier.
15.7 The supplier shall have a set-off right and a right of retention only in case of final and conclusively determined or undisputed counter-claims.
16. Reservation of ownership
16.1 Materials furnished by Solunaris will remain property of Solunaris. As such it shall be stored separately and shall only be used for completion of Solunaris’ orders.
16.2 Any processing or remodelling by the supplier shall be undertaken for Solunaris. In the event of combining things of Solunaris with things not belonging to Solunaris in such a way that they become essential parts of a uniform thing, Solunaris shall acquire co-ownership of a this thing, the shares being determined by the relationship of the value that the things have at the time of combination. If the suppliers good is to be seen as the main thing, supplier and Solunaris agree upon supplier transferring co-ownership of this thing to Solunaris. Solunaris declares acceptance of this transfer.
16.3 Supplier will transfer ownership of the order items to Solunaris unconditionally and regardless to the payment of the purchase price. If, in any case, Solunaris agrees to acquiring ownership under the condition of prior payment of the purchase price, the reservation of title of the supplier will cease with payment of the purchase price of the particular good at latest. Solunaris is entitled to resell the reserved goods during the ordinary course of business under assignment of the claim in advance (alternatively under common reservation of title extended to the resale of the goods). This excludes all other forms of reservation of title, in particular the overall reservation of title, the extended reservation of title and the reservation of title extended to the processing of the goods.
16.4 Solunaris reserves the right to ownership of provided or financed tools. The supplier is obliged to use the tools to produce or process the good ordered by Solunaris exclusively. It is obliged to insure and maintain the tool belonging to Solunaris at its own cost at replacement value.
17. Place of performance and of jurisdiction
17.1 In case the supplier is entrepreneur, legal person under public law or special fund under public law according to Sec. 310 Para. 1 BGB (German Civil Code), place of performance and of jurisdiction shall be Wiesbaden. This shall be the exclusive place of jurisdiction.
17.2 Solunaris may assign the rights and obligations under the contract to third parties without the suppliers consent.
17.3 The supplier has to announce a transfer of its place of business immediately in writing.
17.4 The invalidity or unenforceability of any provision or part of a provision of the contract shall not affect the validity of the entire contract.
17.5 The contract shall be construed and be subject of laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Additionally, the Incoterms 2010 of the International Chamber of Commerce, Paris do apply.
17.6 In case of deviations of these Purchase Conditions from the German text, the conditions of the German text shall prevail.
June 2014